The recent confirmation by the Supreme Court that it was unlawful discrimination for Christian hotel owners to refuse a double-bedded room to a same-sex couple was of considerable interest as the latest in a string of high-profile cases involving religious belief and discrimination on the basis of sexual orientation (and the first such judgment involving the highest court in the land). We have already provided a summary of the facts and judgment here, and our post on the Court of Appeal ruling can be found here.

The case has been portrayed in some media as a clash between gay rights and religious freedom, with gay rights winning – see e.g. the Daily Mail’s headline: B&B owners’ right to bar gay couple crushed by ‘need to fight discrimination’. This is despite the best efforts of Lady Hale, who gave the main speech, to emphasise at paragraph 34 that this decision did not amount to replacing legal oppression of one community (homosexual couples) with legal oppression of another (Christians and others who shared the appellants’ beliefs about marriage), because the law equally prohibits a hotel keeper from refusing a particular room to a couple because they are heterosexual or because they have certain religious beliefs. However, moving beyond this simplistic portrayal of the issue at stake, there are several interesting legal points in the decision, which may raise more questions than it answered.

Proceed directly or indirectly to discriminate?

First, this judgment has unfortunately made the already unclear distinction between direct and indirect discrimination all the more confusing. UK equality legislation is drafted in quite a technical manner and if direct discrimination is found to have taken place there is no general defence of justification, whereas if the discrimination is indirect it can be justified. This leads to the courts and tribunals regularly tying themselves in knots to find that an action is indirect discrimination where they feel it was reasonable, even if it does not comfortably fit within that definition. That is a particular problem where, as in the Bull case, there are competing protected characteristics in play.

Ironically, Lady Hale herself noted this very issue in her Alison Weatherfield Memorial Lecture earlier this year (well worth a read) and referred to how unsatisfying the Supreme Court had found the current law when they had to apply it to the admission criteria of a Jewish school in the JFS case in 2009. Yet despite this, we now have a further judgment from the Supreme Court which involved a 3-2 split on whether the Bulls’ policy on double bedrooms amounted to direct discrimination.

On closer analysis the reasoning of the three Justices (Lady Hale, Lord Kerr and Lord Toulson) who held that it did amount to direct discrimination is not particularly convincing. It was based in large part on the assumption that a civil partnership is indistinguishable from marriage and therefore any distinction between the two is in effect to discriminate on the basis of sexual orientation. However, this is difficult to square with the recent passage of the Marriage (Same-Sex Couples) Act 2013. Parliament has now (and arguably has always) made it clear that marriage and civil partnerships are different institutions. Moreover, the appellants rightly pointed out that there is nothing currently to stop a gay person getting married to someone of the opposite sex or a heterosexual person entering a civil partnership with someone of the same sex. This argument does not really seem to have been engaged with; Lady Hale simply says “we can, I think, leave it aside” without properly explaining why.

By contrast, Lord Neuberger adopts a much simpler approach and held that this was not direct discrimination, partly because (as he explains at para 84) it is important to keep the law clear and consistent. Lord Hughes, who agreed, sets out the majority’s position in a straightforward set of logical steps and shows the flaw in it, at paras 88-91. Given these strong dissents, this is probably not the last case we will see on the difference between direct and indirect discrimination.

Reasonable accommodation?

Second, there have been increasing calls over the past two or three years for a doctrine of ‘reasonable accommodation’ in cases involving religion and belief. Various interveners in the Eweida and others cases before the European Court of Human Rights earlier this year argued in favour of this approach, but the Strasbourg court did not make any comment on it either positively or negatively. However, in Bull v. Hall Lady Hale seems to have opened the door to this argument being run in UK courts, stating at para 47:

I am more than ready to accept that the scope for reasonable accommodation is part of the proportionality assessment, at least in some cases. This is reinforced by the decision in Eweida…where the Strasbourg court abandoned its previous stance that there was no interference with an employee’s right to manifest her religion if it could be avoided by changing jobs. Rather, that possibility was to be taken into account in the overall proportionality assessment, which must therefore consider the extent to which it is reasonable to expect the employer to accommodate the employee’s right.

Justify yourself

Third, the appellants accepted that their policy was indirect discrimination and all five Justices were agreed that it was not justified, even taking into account the effect of Article 9. However, only Lady Hale explained why (the other Justices simply agreed with her) and some of the reasons are interesting. One compelling reason was that “we do not normally allow people to behave in a way which the law prohibits because they disagree with the law” and Parliament had decided not to provide a general conscientious objection clause when it passed the relevant Equality Regulations (or, it could be added, in the Equality Act 2010 or Marriage Act 2013).

However, on a plain reading of Article 9(1) it seems to provide an absolute protection to freedom of conscience. Might there be scope for arguing in future cases (or in this one, if it is appealed to the ECtHR) that even where Parliament has not seen fit to expressly allow for conscientious objection such a provision needs to be read into equality legislation so as to be compliant with the Convention?

Another reason given by Lady Hale was that:

Homosexuals can enjoy the same freedom and the same relationships as any others. But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.

This seems be be saying that because there is still significant discrimination and persecution against gay people in other countries, there should not be any exception for hotel keepers in the UK. But that is a rather unusual approach to the justification question in a domestic setting. It is more normal to focus on the balance of harm and interference caused to both parties on the particular facts of the case. In this specific case Mr Hall and Mr Preddy certainly found their treatment very hurtful to their feelings. However, the Bulls did offer to compensate them for any loss and it was accepted that the refusal to allow them a double-bedded room was not done in a demeaning manner.

In contrast, the Bulls have reportedly had tosell their hotelbecause of the effects of this litigation. Moreover, whilst it is tragically the case that LGBT people are treating appalling in many places, it is equally true that Christians who share the appellants’ beliefs are discriminated against and persecuted in most countries (indeed a recent study showed Christians are the most persecuted religious group in the world). The international argument could therefore cut both ways.

Postscript: that pesky European law again

Fourthly and finally, those who blame ‘Europe’ for any laws they do not like, and particularly for discrimination and equality law, would be well advised to read Lady Hale’s comment at paragraph 3 of her judgment. She notes that all EU law requires is a general framework for combating discrimination on grounds of sexual orientation (amongst other protected characteristics). The particular way in which discrimination is defined and any exceptions to discrimination law (or lack thereof) are purely a matter for each Member State. Thus the issues in this case are solely down to the details of domestic law, not European law.

Interesting as ever, Adam. For my part, I am singularly unimpressed with Lord Hughes’ subset argument, upon which he predicates his “straightforward logical steps”. His argument stems from his view that “The claimants, in a civil partnership, are a subset of the unmarried; let us say subset (a).” If, as Baroness Hale, one considers that in law civil partnerships have the full weight, privileges, duties and rights as marriages, then those in a civil partnership are not a subset of the “unmarried” but rather a subset of the “married”, let’s say subset (a). Along with those married in a church, subset (b) and those married in a civil ceremony, subset (c). What would the Bull’s attitude have been to a non-church, civil-registrar-married subset (c) hetero couple. What is the difference between a subset (a) couple and a subset (c) couple other than their sexuality?

The fact that parliament has now enacted legislation to allow the “civil partnership” to be accorded the title of “marriage” is semantic – very important and significant semantic (espec given the troubling news from India – but semantic all the same. It does not connote that there was ever a substantive difference, before the law, between civil partnerships and hetero marriage. To hold otherwise would be to ignore the basis of Lady Hale’s judgment para 26, and Reg 3(4).

What, as Her Ladyship says, is the issue is the legal definition of marriage / married (clearly incorporating civil partnership subset (a), religious marriage subset (b) and civil marriage subset (c)) and Christian concept of marriage – surely only subset (b) in reality.

There is, in my view, a false equivalence in the debate about the competing interests of the LBGT community and the Christian community. Being LBGT is not a matter of choice, belief system or faith, but it is a feature of existence no more truly alterable than having blue eyes, ginger hair, or 10 fingers.

The only choice here is that of the Bulls to adhere to a particular belief system and a particularly stringent variation on that theme by all accounts. Their right to choose to believe in whatever deity etc they wish, while unfathomable to many, is their right. BUT only insofar as that choice does not impinge negatively on another or others. In their private life, no one interferes with their right to pray, believe, talk in tongues etc, but they put themselves into a public interface situation and they must accept their responsibilities as well as their rights. Surely that would be the Christian thing to do….?

You have swallowed gay rights’ propaganda hook, line and sinker. It may or may not be the case that people acquire same-sex attraction without meaning to (that is a complex affair of hormones, defective parental relationships causing emotional deficits, culture, and in some degree at least choice as to whether to reinforce or resist feelings of attraction; and in a good few cases due to abuse), but everyone is responsible for their behaviour. The men in question were not discriminated against because of their thoughts and feelings, but because of their lifestyle, their behaviour. While it is true that we should not discriminate against someone because of their skin colour, for example, it is not unreasonable that we discriminate against them because of their behaviour: most people still accept that it is reasonable to discriminate between those who steal others’ property and those who do not, regardless of skin colour. But with our spiritually blind age that is determined to cast all discrimination as being unacceptable, perhaps even this discrimination will be deemed illegal one day. Civilization depends upon reasonable discrimination, but we seem to be rapidly destroying that.

“Moreover, the appellants rightly pointed out that there is nothing currently to stop a gay person getting married to someone of the opposite sex or a heterosexual person entering a civil partnership with someone of the same sex. This argument does not really seem to have been engaged with; Lady Hale simply says “we can, I think, leave it aside” without properly explaining why.”.

It seems to me perfectly obvious why Lady Hale felt his argument could be left aside. It simply is not “real world” to suggest that “there is nothing to stop a gay person getting married to someone of the opposite sex”. It’s an argument which is demeaning of gay people, suggesting that their sexual orientation is trivial. Disappointing to find this argument supported in a serious human rights law blog. Or, as someone who is not a lawyer, perhaps I have missed an important legal point?

Back in 1957 I was expelled from the Ramsgate Hotel and Boarding House Asociation because they claimed (rightly) that couples were coming down from London for “dirty weekends” at the hotel I then owned and ran ie that many were not married ! I had to admit that as far as I knew NONE of them were married but said I could not afford to turn away what had become a “roaring trade” and asked what I should do.I was advised that if I let two single rooms adjacent to each other for such couples honour and morals would be satisfied ! I refused to do this and was duly expelled for running what came to be known as “the knocking shop on the hill” though most of the visiting young couples were boy friends and girl friends of long duration.
It is worth adding that with the advent of the swinging sixties freedom spread from London to the Home counties and beyond .No doubt missing the subscription from a 100 room hotel the Asociation invited me to rejoin in around 1963 without conditions .I accepted and remained a member for the rest of the century ;such was my experience with the world of sexual intolerance at the time.Gay couples were a rarity but perfectly acceptable as far as I was concerned……

To me, the difference between the majority and the dissenting judges on the subject of whether a civil partnership was, or was not, effectively a marriage was the way they approached it.

Lady Hale seemed to be arguing that since a civil partnership is substantively the same as a marriage (being an expression of loving commitment from one person to another etc) and since in most ways it is to be treated as a marriage, then it is – for the purposes of discrimination – the same as a marriage. This especially applies in the current case when the discrimination is based more on the moral value of marriage (to do with commitment and sex, in which civil partnerships are equivalent) than pension rights (in which they are not).

The dissenters appeared to take the opposite view that a civil partnership is (regardless of how it is to be treated or what commitments anyone has made for what purpose) not marriage. If it was, it would be called ‘marriage’.

This difference has interesting implications for equality. Under the majority conception, it’s important to look at the real-world position of the two groups under discussion and decide whether or not there are any substantive differences between them for the purposes under review. Under the dissenting view, what counts most is the official designation. One could imagine situations in which two groups are which are essentially the same but designated differently would be more appropriately regarded as all one group. So where does the dissenting judgement leave us then? How do we decide when a different designation, plus minor – irrelevant to the current decision – differences, results in a separate group for discrimination purposes, or not? Nursing sisters (female) and charge nurses (male) spring to mind. They often wear different uniforms so could be regarded as separate groups – but they perform the same duties, so the difference is essentially semantic. Can we give nursing sisters privileges denied to charge nurses?

I also agree that the comparison between discrimination against gay people, and not allowing people to exercise a religion-based difference in treatment of others, is a false one, although for different reasons.

Mr Hall’s argument was that people should not be allowed to *treat him* unfavourably because of his sexuality. The Bulls’ argument was that their religion should *allow them to treat others* (e.g. gay people) unfavourably. In a proportionality exercise, therefore, the person wanting simply to be treated equally is (hopefully) always going to find that allowing him to be discriminated against is a disproportionate means of allowing someone else to manifest their beliefs. To my admittedly legally-very-inexperienced mind, the intention of discrimination legislation appears to be to protect individuals from *being discriminated against*, not to provide a mechanism for individuals with certain characteristics *to be allowed to discriminate against others*. Indeed, to allow Christians to discriminate against gay people would be to – as Lady Hale says – produce a group who were effectively exempt from the law. How can the rule of law encompass this? If Christians can – for religious reasons – exempt themselves from discrimination legislation, can I start a religion that believes that paying taxes is sinful?

The ‘conscience’ clause, I think, is an interesting point. However, I think there is a difference between exercising conscientious objection in matters such as abortion or military service, for instance, and homosexuality. The morality of abortion and participating in military action are generally regarded as a subjects for individuals to reach a decision upon, with the state not expressing an opinion either way. Homosexuality is entirely different: the state has mandated via legislation that being gay is not to be regarded as unacceptable, and that homosexual people are to be treated equally. Thus the acceptability of abortion and military service are matters left to the conscience of the individual (and thus capable of protection under conscience clauses), but the acceptability of homosexuality is not.

In addition to the comments made by Utterbarrister above about the relative choice of the position (ie, choosing whether to be gay or not, compared to religious belief, and imposing consequences on others), there is another major point that seems never to have been made in any of these cases yet, but formed a key component of the official OutRage! submission to the ECHR in relation to Eweido and others cases that I wrote: Namely, whether or not the underlying position withstands scrutiny. And this is a key issue, because it doesn’t take much scrutiny of the majority of orthodox Christian positions on homosexuality for it to fall apart at the seams because of the staggering and rampant hypocrisy of selective interpretation of the Bible, never mind issues of bad interpretation and translation. Why has the justification of this kind of belief never been seen to be challenged on the basis of whether or not it withstands scrutiny?

The English/Welsh courts generally do not get involved in the doctrinal merits of a particular aspect of a religion’s beliefs because of the pitfalls that would be involved in doing this. Frank Cranmer on the Law and Religion UK blog wrote about it here: http://www.lawandreligionuk.com/2012/07/19/not-doing-religion/

You can see why: given how complicated religion is, you need to be a specialist to understand the details of what adherents of various religions believe, and why. Then you have the additional problem of some religions not having one single source of authority, so there effectively is no ‘right answer’ to some questions along the lines of “Is X obligatory, recommended, neutral, inadvisable, or forbidden?” How is a poor secular judge to manage such questions? Whatever he decides, someone is going to come up with a doctrinal argument to demonstrate that he’s wrong.

So the answer is to refuse to get into doctrinal disputes, and instead focus on genuineness of belief (as per R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246), and take it from there.

Jen, Thank you for that explanation and reference, but that seems to be to be completely wrong on a rational basis. Given that virtually everyone who cites the Bible as their justification is in reality picking and choosing from a book they haven’t read properly, it is surely reasonable that they are able to explain why they are selecting some verses to believe and not others, and that their answers must have some kind of rationality that withstands scrutiny.

It seems to me more likely that they don’t want to upset the establishment by exposing serious flaws in doctrinal beliefs

The answer to the lack of scrutiny of peoples’ beliefs is, I think, that the coherence of someone’s belief system isn’t relevant to their right to hold a particular beliefs. We should take their beliefs seriously because they, as citizens, believe them to be true.

Believe me, I do see what you mean. However, the purpose of the law isn’t to protect religions (or the integrity of a particular religion) per se; it is to protect individual people’s ability to believe what they choose, and act on those beliefs without undue interference. Consequently, exactly *what* someone believes is – to the courts – not terribly important (as long as it is sincere). The important part is how that belief intersects with the law and with other people’s rights.

This is actually quite a good thing, because it means that everyone’s beliefs and matters of conscience are given the same weight – nobody can get extra protection for a particular belief by saying that since it is doctrinally correct it should be treated as extra-important. Doctrinally correct or not, each (sincerely held) belief is examined on its merits, in the situation at hand.

The law has built protection in, however. There are some criteria in *Williamson* (the case I mentioned above) for deciding whether a particular belief ‘counts’. Those have been set out quite neatly, and a bit more explicitly, in Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 (3 November 2009). (Belief in climate change does ‘count’ as a religion-or-belief for the purposes of the law.)

So if a professed belief was totally illogical, it would not be protected. e.g., “I follow the Ancient Greek religion so I can’t have a bank account,” as in R (on the application of Spiropoulos) v Brighton and Hove City Council [2007] EWHC 342 (Admin) (06 February 2007). (The Ancient Greeks, said the judge, engaged in trade and therefore would have been happy with bank accounts.)

On the other hand, “I am a Seventh Day Adventist and my beliefs prevent me using the internet to file my VAT returns” is protected because, for the claimant, his personal beliefs require him to not use the internet, which he can support by reference to the Bible, even though the SDA church does not specify avoidance of all internet use. See: Blackburn & Anor v Revenue & Customs [2013] UKFTT 525 (TC) (02 October 2013).

But you can’t call a personal preference (such as living on a boat) a belief and expect to get it protected: R (on the application of Brown) v Canal River Trust [2012] EWHC 3133 (Admin) (16 November 2012).

The court, in effect, is giving exactly the same consideration and importance to the sincerely-held minority view as that of the majority. Nobody’s sincere beliefs are ignored simply because they do not conform to the majority. But once a belief is established as one that ‘counts’ (per *Williamson* and *Grainger*) the court decides whether interference with it is justified under the circumstances. And this balancing exercise is, I think, the part of the process that does the real work in deciding which ‘manifestations of belief’ are allowed and which are not.

Because they would stir up a hornets’ nest. Can we really envisage a superior court in this country entering into a dialectic or any debate as to the relative merits of one faith-based system over another (see the Scientology judgment today) or as to the relative merits of one or other interpretation of one or other passage or rather translation of one or other historically fictional account of this or that supposed deity?

Entertaining it would be, no doubt, but the foment it would stir up….. I for one would welcome the complete secularisation of this country, and have little truck with faith-based systems, whilst not quite reaching Dawkinsesque apoplexy. However, to mire the courts in the minutiae of a debate that is by its nature unresolveable by logic, reasoning or intellectual rigour, would not be of any advantage.

I do not for one moment condone or support the persecution of any person or group due to their particular “religious” beliefs or practices. However, nor do I condone or support the raising of such beliefs or practices to some hallowed (sorry for the pun) status, replete with added protections, bonuses and priveleges.

Any ratiocination shows that the underlying position Mike Hersee speaks of will not withstand any proper scrutiny. But therein lies the problem – the position is said to be above ratiocination. By resorting to reason, we apparently lose. It’s an argument that won’t be solved any time soon. When one side can write and re-write the rules….

Oh dear, oh me! The Christian position against homosexual behaviour (not, please note, against persons with feelings of attraction to their on sex) is thoroughly consistent in that every single mention of it in both Old and New Testaments is condemnatory. The Bible says that the human race was sexually differentiated as male and female for the purposes of procreation; all sex outside of husband and wife relationship is wrong because it is an abuse of God’s precious gift. That is clear and perfectly logical and reasonable, and does not depend upon bad translation or interpretation. Pick up any translation in any language (Bible has been translated into about two thousand languages) and you will find exactly the same thing. Happy reading!

If your hotel is in the news because you discriminated against someone, don’t expect your business to flourish or sympathy from the public, specially in a country which values fairness and equality like the UK.

To the eyes of a layman like me, suggesting that they having to sell their hotel has anything to do with being discriminated over their religious beliefs in this case is not quite correct I think. I don’t see how the international argument could cut both ways!

Someone’s religion is their choice; what “teachings” they decide to take to the extreme or simply ignore is a completely different choice, but still a choice (which somehow deserves the special status of “religious freedom” and is the whole point behind this case I think); however someone’s sexuality is not a choice.

Alasdair, your point about freedom of conscience being absolute is interesting, but I ultimately think it is misplaced. However, I seem to remenber the dissenting judges in Eweida and Others v UK taking your line.

I would suggest that the better view is that freedom of conscience is absolute because it does not affect others. Therefore, I would say it is not correct to regard as matters of the freedom of conscience cases in which others *are* affected by the observance of religious tenets. (I think Jen — Dec 11, 10.37 am — has hinted at the same point.)

I think my view is supported by these words of Lord Nicholls in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2006] 2 AC 246, [16]-[17]:

‘[U]nder article 9 there is a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified. This is to be expected, because the way a belief is expressed in practice may impact on others.’

(See also Kokkinakis v Greece, ECtHR, para. 33)

Thus, freedom to hold a belief or to have a conscientious view as to something (or indeed to think, freedom of thought also being covered by Article 9) is internal to the believer. German constitutional law calls this the ‘forum internum’ of the freedom of religion. ‘Freedom to manifest one’s religion or beliefs’ (Article 9(2)), however, is an external matter, or part of the ‘forum externum’ of the freedom of religion. Therefore, it is not absolute.

Accordingly, it is not correct to label something that is external and that constitutes an outward *manifestation* of a religion or belief as simply a matter of ‘conscience’. It transcends (or exceeds) conscience and moves into manifestation. As such, it is not and cannot be absolutely protected.

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